Commissioner of Police of the Metropolis v DSD

Facts

Between 2002 and 2008 John Worboys, a London taxi driver, drugged and sexually assaulted a large number of women passengers. The two claimants, DSD and NBV, reported offences committed against them to the Metropolitan Police at different times, but the police investigations were seriously deficient, including failures to take statements, gather evidence and follow up leads, and Worboys was not apprehended until much later. The claimants brought claims against the Commissioner under the Human Rights Act 1998 for breach of the investigative obligation under Article 3 of the European Convention on Human Rights.

History

Green J found that there had been breaches of Article 3 in the investigation of each claimant complaint and awarded damages. The Court of Appeal dismissed the appeal of the Commissioner on liability. The Commissioner appealed to the Supreme Court, with the Home Secretary intervening.

Issue

Whether Article 3 imposes on the police a positive obligation to investigate effectively ill-treatment of the requisite severity committed by private individuals; and whether that obligation can be breached by operational failures in a particular investigation, or only by systemic failures in the legal and administrative framework.

Held

Appeal dismissed. The police had breached Article 3 in their investigations and the claimants were entitled to damages under section 8 of the Human Rights Act 1998.

Ratio

• Article 3 imposes on the state a positive obligation to conduct an effective official investigation into credible allegations of serious ill-treatment, including rape and serious sexual assault, committed by private individuals.
• That obligation is not confined to systemic defects in the legal and administrative framework; serious operational failures by the police in a particular investigation can breach it, although not every error or shortcoming will do so, and only conspicuous or substantial failures will found a claim.

The judgments

Key reasoning

• The Strasbourg court, in cases such as MC v Bulgaria (2003) and others concerning ill-treatment by private persons, had found violations of Article 3 based on deficiencies in the investigation of particular complaints, not merely on defects in the legislative framework.
• An obligation limited to systemic failures would give no protection to a victim whose complaint was mishandled within an adequate framework, which is precisely when an effective investigation matters most.
• The concern that the duty would distort policing priorities or expose the police to excessive claims was met by the requirement that the failures be serious, and by the distinct nature of a Convention claim, which vindicates rights rather than compensating for loss in the manner of a tort claim.
• The policy concerns that underlie the refusal of a common law duty of care in the investigation of crime, as in Hill v Chief Constable of West Yorkshire [1989] AC 53, did not determine the scope of the Convention obligation, which has a different purpose and is subject to its own threshold of seriousness.

Where it fits in the module

On negligence of public bodies, DSD is the key contrast case: the common law, following Hill and Michael v Chief Constable of South Wales Police [2015] UKSC 2, generally denies a duty of care owed by the police to victims in the investigation of crime, while the HRA provides a parallel route to redress. It raises the central debate whether the Convention should fill gaps left by the common law, and whether the existence of the HRA remedy undermines or supports the restrictive approach in negligence.

Criticisms

• Recognising liability for operational investigative failures under the HRA while denying it in negligence produces an incoherent dual system in which the same conduct is actionable under one regime but not the other.
• The seriousness threshold is vague, leaving police and courts uncertain where ordinary error ends and a breach of Article 3 begins.
• Allowing claims for operational failures may divert police resources towards defensive investigation, a concern expressed by Lord Hughes.
• Conversely, the decision may be defended as properly reflecting the vulnerability of victims of serious sexual offences and the need for accountability where the state fails them.